Why the success of the Federalist Society is unlikely to be replicated.
With President Trump’s nomination of Brett Kavanaugh to the Supreme Court seat Justice Anthony Kennedy is vacating, the influence of the Federalist Society—the membership organization of conservative and libertarian lawyers, legal scholars, and law students—remains at the absolute peak it attained during the administration of George W. Bush with the nomination of Samuel Alito to the nation’s highest court.
Founded in 1982 by Lee Liberman Otis, Steven Calabresi, David McIntosh, and E. Spencer Abraham, the Federalist Society launched as a counterbalance to the leftward tilt among law school faculty nationwide. Part of the idea was to ensure that the progressive hegemony on campus met serious resistance at least at the level of intellectual debate, if not the numerical balance among faculties. But within 20 years of its establishment, the Federalist Society had also emerged as the premier vetting institution for Republican appointments to the federal judiciary, especially at the appellate level.
The Federalist Society established itself in that role not through some gradual consensus-building process—nor, as the conspiracy-minded left likes to suggest, through a cabal of right-wing lawyers determined to hijack judicial nominations. Rather, it rose to the top the old-fashioned way in politics: by taking down someone of whom it did not approve.
Her name was Harriet Miers, and from managing partner at a 400-lawyer Dallas firm of no special distinction she traveled to Washington in 2001 with President George W. Bush to serve in several increasingly senior White House positions, culminating as White House counsel—the president’s top lawyer. Then in 2005, Justice Sandra Day O’Connor announced her retirement from the Supreme Court. The partisan balance in the Senate was 55-45 in favor of the GOP, but the quaint convention of the filibuster still applied to judicial nominees, prompting concerns about confirmability. To arrive at the 60 votes needed to end debate and get to an up-or-down majority vote, you presumably needed to keep your party together and recruit a few senators from the other side.
This challenge arose in a likewise antiquated time when senators (some of them, at least some of the time) expressed the view that a president’s choice was due considerable deference and that the Senate should confirm nominees of requisite competence, experience, and good character. Even so, you can’t be too careful, and a nominee with a little special sauce might enjoy preferment over yet another white guy just starting to gray at the temples—especially because John Roberts, just having been confirmed as chief justice, was exactly that guy.
It was at this point that Bush experienced a flight of fancy of the sort that used to be rare in presidents. His eye lighting upon the very person in the White House who typically serves as the president’s top judge picker, he had a moment straight out of a Taylor Swift song: “You wake up and find / that what you’re looking for has been here the whole time.” On October 3, 2005, he nominated Miers.
This came as a surprise to everybody, not least Miers, who was in no way ready for a confirmation process that is at best an ordeal for even impeccably qualified and experienced nominees. Initially, tepid supporters said she would at least bring a little diversity of legal background to the Supreme Court. But this was perhaps too reminiscent of Sen. Roman Hruska’s defense of Nixon High Court nominee G. Harrold Carswell: “Even if he is mediocre, there are a lot of mediocre judges and people and lawyers, and they are entitled to a little representation, aren’t they?”
Well, no. Democratic opposition to Miers was swift in coming, but predictable. Less expected and far more compelling was the gathering revolt of the conservative legal community the Federalist Society represents (though the organization takes no position on such matters): Presented with a second rare and important opportunity to shape the Court, Bush simply had to do better. He had available the best legal minds of their generation—sober, talented, tireless men and women who had spent their entire lives preparing themselves for such a chance. Over the course of three weeks, the anger mounted. On October 27, the White House announced it was withdrawing Miers’s nomination.
Bush got the message, standing up in her stead Samuel Alito (special sauce: Italian—albeit unoriginal after Antonin Scalia, still tasty). From the majority viewpoint of Federalist Society members, he was a choice as impeccable as Roberts had been for chief justice (disappointment with the latter over his ruling saving Obamacare was still seven years away).
The Federalist Society reigned supreme over the process, as it does to this day. A key strategic move on the part of candidate Trump in 2016 was effectively to outsource his Supreme Court picks to Leonard Leo and his colleagues, who developed a list of Supremables from which Trump promised to pick (a list that didn’t originally include Kavanaugh or Neil Gorsuch, Trump’s first appointment, but was expanded in timely fashion to get them into consideration). In response to another body with the proven power to derail a GOP Supreme Court nominee, Trump sought the Federalist Society’s advance “advice and consent.”
The Federalist Society is a remarkably effective institution, a collective effort among conservative and libertarian women and men of the law to band together and promote their best and brightest for the highest positions in the federal judiciary. So effective is it that some nonpartisan admirers have proposed it serve as a model for promoting excellence in other endeavors as well.
In fact, that’s unlikely. The Federalist Society’s role in judge-picking is ultimately a product of the unique place of the judiciary in the constitutional order of things and of the emergence of the judiciary as an ideological battleground.
A self-described political “independent” can count on never being nominated as an appeals court judge. Republican presidents pick Republicans and Democrats pick Democrats. This fact alone accounts for the (perpetually contested) balance of Republicans and Democrats serving as judges.
The path to a black robe typically begins at an elite law school, with the next stop an appellate court clerkship, then a Supreme Court clerkship, then some mix of government service, private practice, and scholarship, then a nomination to the appellate bench and confirmation (or rejection). In their selection of clerks, the role that key sitting judges of both parties play in this winnowing process can hardly be overstated. But Democrats have something that Republicans don’t, which is dominance among faculty at elite law schools, where Republicans enjoy only tokenish representation (one is tolerable, maybe two—but that will do nicely, thank you).
The Federalist Society goes a ways toward filling that gap. It might also deserve credit for the presence of even token conservatives on law faculties, through its promotion of intellectual excellence. But with appointment powers at law schools, unlike the presidential power of appointment to the federal judiciary squarely in the hands of left-wing faculty, don’t expect the Federalist Society’s influence ever to extend so far. For the same reason, no equivalent society of conservative-leaning political scientists could bring balance to those departments—let alone one of English Ph.D.s promoting critical interpretation of a literary canon and argument over who belongs in it on the literary merits.
And that’s why there are no such societies outside the field of law. The Federalist Society is a remarkable success story unlikely to be replicated.
Correction: The article originally stated that the Federalist Society was "founded in 1982 and led by the indefatigable Leonard Leo." It was founded in 1982 by Lee Liberman Otis, Steven Calabresi, David McIntosh, and E. Spencer Abraham. Leonard Leo is currently the organization’s executive vice president and did not come to work there until 1991.